Centralia & Chester Railroad v. Brake ( 1889 )

Phillips, J.

The Centralia & Chester R. R. Co. instituted proceedings for condemnation of right of way over lands of appellees, under Chap. 47, Starr & C. Ill. Stats., and judgment entered. The railroad company prosecuted an appeal to the Supreme Court and filed its appeal bond. The judgment was affirmed. This is an action on the appeal bond. The appellees, by leave of court, amended their declaration and ade^ed an averment that the railroad company, after filing the appeal bond against the protests of plaintiff, entered into possession of the right of way, etc: To that averment, which was an unnecessary one, the defendants filed a special plea denying that the railroad company had entered and taken possession and remained in possession, etc., and replication was filed. There was also a plea of non est fa'otum. The special plea on which issue was taken made an immaterial issue. A verdict can not help an immaterial issue. Tidd’s Prac. 921.

Further, we have looked into the record and can not find the appeal bond sued on was offered in evidence. We must, therefore, reverse and remand this cause, with directions to the court to award a repleader.

Reversed and remanded vñth directions.